I welcome the Minister for Justice and Equality, Deputy Frances Fitzgerald. Before we continue, I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on it.
Criminal Law (Sexual Offences) Bill 2015: Report and Final Stages
On a point of order, in the case of someone who opposes a section, can that person speak twice?
No sections are being discussed. We are discussing amendments.
The term "image" arises in section 6(1)(b) in the context of the offence of causing a child to watch sexual activity. Section 8(4) sets out the definition of "sexually explicit material". The section sets out how it is an offence to send such material to a child by means of information and communications technology. For the purposes of clarity, it is proposed to define the word "image" to ensure it clearly encompasses still and moving images and any other type of image that may be produced.
The wording used in the definition is similar to that used in the definition of "visual representation" in the context of child pornography, as it appears in the Child Trafficking and Pornography Act 1998. An additional phrase, "or any other form of visual representation," has been included to ensure images produced by new technologies are automatically covered by the definition.
It is important that definitions be as clear as possible. As the amendment appears to achieve this, I am happy to support it.
Amendments Nos. 2, 3, 5 to 22, inclusive, 27 and 44 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 2:
In page 6, line 14, to delete "child pornography" and substitute "child sexual abuse material".
These amendments were also tabled on Committee Stage. As I have already articulated my views on this issue on Second and Committee Stages, I do not intend to be repetitive today. I appreciate that the amendments, as drafted, technically do not address everything that needs to be addressed, but I am strongly of the view that use of the phrase "child pornography" is abhorrent and we need to be using it for the term that it is. The word "pornography" in some way implies that there is some consent. In the English dictionary in the mid-19th century the word was associated with terms such as "taboo" and "secretive," but it has now become common parlance. For me, the words "child" and "pornography" should never be used together. We are clearly talking about child sexual abuse material relating to children who cannot and would not consent; they are victims of a crime. The child abuse images are documented evidence of a crime in progress, a child being sexually abused.
Similar to the amendments I tabled to the Criminal Law (Rape) (Amendment) Act 1990 in relation to assault, these amendments seek to positively change this legislation. Similar amendments have been accepted. Also, I note that the United Kingdom, through an amendment to its Serious Crime Act 2015, has amended its Sexual Offences Act 2003. The term used in the United Kingdom for both child prostitution and child pornography is "sexual exploitation of a child." I want us to name this material for what it is. What I am seeking from the Minister is a commitment that her Department will seek to rectify the balance.
As I said, I do not propose to reiterate the arguments I put forward on Second and Committee Stages. I believe that in Ireland we should have a system to filter all child abuse material, as happens in the United Kingdom and on our mobile phones, as mobile phone providers have signed up to an EU agreement in that regard. We should be automatically doing this work. I commend the work of the Internet Watch Foundation in the United Kingdom and hope we could have something similar here. The purpose of the amendments is to name this material for what it is, namely, child sexual abuse material. Interpol and Europol have asked us to call it what it is. They have asked us not to use the term "child pornography," because it in some way diminishes the act. I ask the Minister to consider my proposals.
I second the amendment which is excellent. I am interested to learn that Interpol supports this proposal. That is a very strong argument. I hope the Minister will see her way to accepting the amendment, particularly in the light of the strong support for it from Interpol. I may be an innocent, perhaps because of my age - I am almost 72 years old - but I have never seen child pornography. I agree with Senator Jillian van Turnhout that it is doubtful that this material could be correctly termed pornography. The word "pornography" comes from the Greek words "porne" and "graphein," and means the writings of prostitutes. In common parlance it is taken to be erotic material to arouse the viewer. I cannot imagine circumstances in which any normal adult would be aroused by the spectacle of children engaging in sexual activity, presumably, on many occasions, under compulsion. Some of these children, I understand, are extremely young. That is very worrying. It seems that in every situation this is material that is an abuse of children. It should not happen and it is a violation of children. To my mind, the correct terminology is "child sexual abuse material". The only reason I can think of for retention of the phrase "child pornography" is that it is a term that has registered in the public imagination and is the phrase used in the newspapers and so on. I believe the Seanad has a role in educating the public and should take the lead in that regard. I ask the Minister to positively consider the amendment, acceptance of which will not result in any complication in terms of the passage of the Bill. This is an aspect of the Bill about which I feel quite strongly.
I thank the Senators for the amendments. As stated by Senator Jillian van Turnhout, the effect of the amendments would be to substitute the term "child sexual abuse material" for "child pornography" throughout the Bill and the other Acts in which it appears. The EU directive on child sexual exploitation and pornography uses the term used in this Bill. However, I appreciate Senator Jillian van Turnhout's concerns and support her aim of ensuring no one is in any doubt about what is meant when we speak abpit child sexual abuse material. It is, as stated by the Senator, crime scene evidence of the most depraved and disgusting acts in relation to children. A huge concern for criminal justice investigations across Europe and the world is the increasing evidence of abuse of children, most of whom, as stated by Senator David Norris, are very young.
While I am not entirely convinced that the term "child pornography" fails to convey the true nature of this heinous material, I am, as I have stated previously, open to considering the change proposed by Senator Jillian van Turnhout in a future review of child pornography legislation. For technical reasons and owing to the scale of the review involved,which I think the Senator will appreciate, I am unable to accept the amendments today. The Minister of State outlined on Committee Stage the technical reasons to which I referred and I would like to reiterate them for the benefit of the House.
The term "child pornography" appears in the Statute Book outside the 1998 Act. Any general amendment to that term throughout the Statute Book should be carefully made. I am advised that a general amending provision such as that proposed by Senator Jillian van Turnhout in amendment No. 27 would not suffice. Rather, apparently, each provision in the Statue Book containing the term it is proposed to amend should be individually identified. While it is not unusual to substitute one form of words with another, this is done through individual identification in each instance. This is an important safeguard, particularly, of course, when it comes to criminal justice legislation.
The amendments proposed also raise technical issues, including, for example, the impact on the Short Title of the Child Trafficking and Pornography Act 1998. I am advised that it is not appropriate to amend the Short Title of an existing Act by way of an amendment in subsequent legislation. The Senator will appreciate that such amendment would need to be provided for by way of a different Bill. The Act should be substituted and repealed. I hope the Senator understands the reason I am unable to do that at this point. However, I take the points made by her and they will be taken into account in the context of any review of that legislation.
I thank the Minister for her reply. I believe there are proposals at EU and Council of Europe level to look at this issue. I hope Ireland will be at the vanguard and lead any change in that regard. I appreciate that the change cannot be made today, but I hope the Minister will accept the need for it. It is an issue about which I feel strongly and a measure which has the support, as I said, of Europol and Interpol.
An Irish garda working for Europol made a presentation to us here a few years ago and was able to show us the types of material - he did not show us images - the nature of the material and the depravity involved. He talked of pictures of babies who still had umbilical cords on them. There is no age too young for these horrendous and heinous images and it needs to be ensured our legislation reflects this.
I move amendment No. 4:
In page 7, lines 12 and 13, to delete "to a fine or imprisonment for a term not exceeding 10 years, or both" and substitute "to imprisonment for a term not exceeding 10 years".
Cuirim fáilte roimh an Aire. The explanatory memorandum states Part 2 "contains provisions to enhance the protection of children from sexual exploitation, including exploitation through child prostitution and child pornography. Provisions are also included to target acts of child sexual grooming". It further states: "A person found guilty of an offence under this section shall be liable on conviction on indictment to up to 10 years imprisonment." On Committee Stage the Minister of State took the Bill and did not give a compelling reason section 3 had been watered down. Section 3(5)(b) states:" A person guilty of an offence under this section shall be liable ... on conviction on indictment, to a fine or imprisonment for a term not exceeding 10 years, or both". The Minister of State made this amendment on Committee Stage.
This begs the question: of what offence would the person be guilty that he or she could get by with a fine? The section does not even specify what the fine should be, stating:
3. (1) A person who for the purposes of the sexual exploitation of a child—
(a) pays, gives, offers or promises to pay or give a child or another person money or any other form of remuneration or consideration,
(b) provides or offers or offers or promises to provide, a child to another person, or
(c) obtains a child for himself or herself or for another person,
shall be guilty of an offence.
These are most serious offences. The best the Minister of State could come up with on Committee Stage was that perhaps previously legislation reflected the fact that judicial discretion would apply to conferring a fine or to imprisonment. On summary conviction, it can be a fine or imprisonment and I do not challenge this, but if someone is charged on indictment, it means that a more serious offence has occurred in the opinion of the Director of Public Prosecutions. If the courts decide that the person is guilty, he or she is guilty of a grievous crime against a child and it is unconscionable that we would send a signal that a fine is adequate sanction in that scenario. Therefore, I hope the Minister will accept my amendment and revert to the original wording which was drafted and approved by her and the Government. Whatever lobbying went on to make her amend this should be set aside at this stage. We should revert to sending a clear signal that paedophilia is not acceptable in the minds of Oireachtas Members and send a clear signal to the Judiciary that imposing a fine is not sufficient sanction when a person is found guilty on conviction on indictment.
I second the amendment. Senator Jim Walsh has outlined clearly the reason the amendment has been tabled. Somebody convicted on indictment of a serious sexual offence against one of the most vulnerable cohort of people in our society, namely, children, should face a term of imprisonment, not a fine. To even provide for the option of a fine minimises the serious offence a person would be convicted of and there should be no leeway in this regard. On conviction for a serious offence against a child, there should be a mandatory prison sentence up to a maximum of ten years.
Virtually everyone would agree that sexual offences against a child are heinous, but I have reservations about the amendment proposed by my Fianna Fáil colleagues for a number of reasons. First, Senator Jim Walsh referred to conviction on indictment as if that was the only provision in the section but it is not. Section 3(5)(a) states:
"(5) A person guilty of an offence under this section shall be liable--
(a) on summary conviction, to a class A fine, or imprisonment for a term not exceeding 12 months."
Summary conviction is also considered, therefore, by the legislation.
The second reason is there is nothing that states anything about the knowledge or the mens rea of the person committing the alleged offence. One has to take into account the possibility that somebody might engage in sexual relations with somebody who appeared above the appropriate age.
On the question of age, in this section and the following two sections, there are three different definitions of what a child is in terms of his or her years. That suggests a certain confusion. What is a child? In one section, it is a person under the age of 18 years; in the next, it is a person under the age of 15; and in the next, it is a person under the age of 17. That leaves it open to ambiguity. What about somebody, for example, who engaged in sexual congress with a person who was for the purposes of this section 17 years, 11 months and 28 days? That seems to be a situation in which a fine would be perfectly well justified rather than a term of imprisonment of up to ten years. I am afraid I cannot support my colleagues' amendment.
I thank Senators Jim Walsh and Diarmuid Wilson for the amendment, the effect of which would be to remove the possibility of imposing a fine as part of the penalty for an offence under section 3. That includes the offences of obtaining or providing a child for the purposes of sexual exploitation and related offences. The aim of the amendment is to ensure persons convicted of such appalling offences cannot escape with a fine instead of imprisonment. While that is an understandable aim, it is, however, the norm, in particular for offences which may be motivated by, for example, financial gain, to include a fine in addition to a penalty of imprisonment. The purpose of providing the options of a fine, a sentence of imprisonment or both is to ensure the court can determine the most appropriate sentence in all the circumstances of a particular offence and a particular offender. It leaves this to the discretion of the court having regard to the particular offence, circumstances and so forth.
Obviously, these offences will vary, about which there is no question. As we know, there are different levels of exploitation and the related offences also.
I want to highlight that section 3 contains a number of related offences. It includes offences of paying for a child, providing a child and accepting a child for the purposes of sexual exploitation. I have to agree that it is almost impossible to imagine any circumstance under which anything, other than a prison sentence, is acceptable for such offences. It is also the case that a person who agrees to accept or give money to a child for the purposes of sexual exploitation but then thinks better of it and does not proceed any further is guilty of an offence under section 3. That is one example of the kind of range one could have. I am not passing any judgment but making the point that one can have different types and levels of offence under section 3. I mention that example not to suggest for one moment that any particular offence for which a fine alone may be appropriate but to illustrate the range of offences and circumstances covered by section 3.
In other areas of law, for example, in the case of a non-fatal assault, where in a similar discussion to the one we are having, one might say: "Of course, imprisonment is the option here." In fact, we again leave it to the discretion of the court. There is a possibility, in certain circumstances as we know, of a fine or a prison sentence or both. It is leaving discretion to the court, with the judge to decide having considered all of the evidence. It is a recognition that the court is best placed to determine the appropriate sentence in a particular situation, taking into account all of the circumstances. I think it is appropriate to provide in law a range of possible sentences, including under this section. That is the usual practice. Senator Jim Walsh said my colleague and the Minister of State, Deputy Aodhán Ó Ríordáin, had referred to the fact that it was the norm to have that range of sentences in order that the judge would have the option, in examining each case, to decide what was the most appropriate sentence. As I said, in other very serious offences, that is what we do in our law. We give the range of sentences and then leave it to the courts to actually decide. We are reflecting, in this legislation, the general approach in the discretion we allow the courts to decide. Therefore, I cannot accept the amendment.
I thank the Minister for her response. I have found her concluding remarks very unsatisfactory and would like to deal with some of the points she and Senator David Norris made in this regard.
Our knowledge now of paedophilia and the effects it has on victims is far superior than it might have been some decades ago. Therefore, it is important that we send the correct signals to society, perpetrators and the Judiciary as to where we rate this offence in the criminal code.
Senator David Norris pointed - I had already made reference to it - to the phrase "on summary conviction". Is it not the case that when the evidence is gathered and when the Office of the Director of Public Prosecutions assesses that evidence, it will determine whether the charge will be made on summary conviction or on conviction on indictment or, if the case goes to a lower court, it might decide that it should be made on conviction on indictment?
With regard to what Senator David Norris said, that mens rea is part of the defence, if it applies, it can be made in whichever court the case is heard. Also, mens rea forms part of the consideration before the judgment is determined. That means that there is nothing to prohibit the person before the courts who is being charged from being able to defend his or her position legally with the various arguments that his or her legal team can put forward in defence. What we are talking about is after all of that and the particular judgment has been made. We are talking about what the sentence should be. This is where I digress considerably from the Minister. She talked about various levels of exploitation. In the first instance, that will be taken into consideration, depending on whether the case is taken forward on summary conviction or conviction on indictment. Some evaluation will be made in that regard.
Section 3 clearly sets out that this is a deliberate attempt when somebody is found guilty of (a), (b) and (c). Section 3(1) states:
3. (1) A person who for the purposes of the sexual exploitation of a child—
(a) pays, gives, offers or promises to pay or give a child or another person money or any other form of remuneration or consideration,
(b) provides or offers or offers or promises to provide, a child to another person, or
(c) obtains a child for himself or herself or for another person,
shall be guilty of an offence.
Regardless of whether they were the ones who only got money from it, they are as guilty as the people who sexually exploited the children. This comes back to the best interests of the child. I have to say I was sceptical when I saw the Government put a referendum to the people on the best interests of the child. There has been no Government in the history of the State and in my lifetime under which the child is more vulnerable because of the actions of the Government in its period in office.
That is rubbish.
I could name many of them. In this specific instance the Minister has said there is a range and that judicial discretion should apply to a range of particular sanctions. Depending on the gravity of the offence and the assessment of the judge, when a person is found guilty, the judge will still have a range because the amendment states clearly that it is "imprisonment for a term not exceeding 10 years". That means that there is a scale of sentences ranging from one day, two days, one week up to ten years. There is also the issue of suspending part of the sentence.
I am clearly saying we should not accept a situation where a person can get off purely by paying a fine where he or she has been found guilty of an offence to exploit a child. If the Minister has said that to me, I must clearly say to her and the Government that they have failed in their duty to children and the constitutional amendment they have brought forward. It begs the question as to how sincere the Government was about that amendment to the Constitution.
I am not a member of the Government, but I am a Member of the Oireachtas. I do not want to be part of an Oireachtas which sends a signal to the Judiciary or society that a mere fine is sufficient where a person has been found guilty of an offence to exploit a child sexually, whether he or she is the direct exploiter or a participant. I do not for one second understand - the Minister has not explained this -why the change in the amendment was brought forward by the Government on Committee Stage. I am well aware that there are ideological groups globally that advocate sexual freedoms, including pederasty and sex between children. We have seen such groups. A plethora of groups have argued the case.
I doubt there are very many.
I would hate to think such ideologies are influencing what is happening or being reflected here. I ask and appeal to the Minister to reflect on what has been said and include a reference to the best interests of the child in this legislation. That means signalling clearly that such behaviour is unacceptable and that if a person is found guilty of such acts, he or she will face a term of imprisonment. The length of the sentence will be at the discretion of the judge and depend on the gravity of the offence. We must send the message that perpetrators will not get away, if they have deep pockets, with just paying money. We have seen cases where this has happened with adults and money was paid. There was a huge public outcry about money being paid and, subsequently, the decisions were appealed by the Director of Public Prosecutions. I ask the Minister to, please, let that not happen.
To suggest for one moment that the approach we are taking in the Bill is the result of lobbying is absolutely and totally incorrect.
Why did it happen?
For the reasons I have outlined.
To suggest the Government or anybody working on the Bill or the approach we have taken in it has any ambivalence whatsoever in relation to the offences about which we are talking is simply outrageous and untrue. If we were to accept the amendment, it would bring the penalty for this offence out of line with penalties for similar offences in other sections of the Bill. A trial on indictment may indicate a more serious offence that still requires to be proved before a court-----
-----but also a person tried summarily indicating a minor offence may elect to have a trial by jury which brings them into this penalty range. That is an important point. The reasons are as I have outlined. To extrapolate from the approach we have taken in this part of the legislation; to suggest the Government is not putting the best interests of the child first, in a week when the Child and Family Relationships Act has come into effect, where the best interests of the child have to be the paramount consideration when making decisions on guardianship, access, custody and maintenance; given the work that has been done on the children's rights referendum which gives the individual child rights and protects children in long-term care in order that better decisions are taken for them in terms of adoption, and given that we have passed the Marriage Equality Bill 2015 which protects children who are living with same-sex couples, I certainly cannot accept what the Senator has had to say about children and the approach of the Government to protecting children's rights. I have given the reasons we are including a fine or a term of imprisonment for this offence. It is in line with the approach taken to all serious offences, apart from murder, where we leave it to the discretion of the court to examine individual cases and look at the individual circumstances. To extrapolate beyond that and suggest that in some way there is an ambivalence about people who exploit children is incorrect.
No, I cannot allow the Senator to interject.
I am so allowed. Standing Orders-----
Standing Orders state the proposer of an amendment may reply to a discussion on it. The Senator cannot speak twice.
Therefore, the Acting Chairman is silencing me.
I am not silencing the Senator. These are the Standing Orders of the House.
In that situation I find what the Minister has said unacceptable. I think it is a dereliction of fulfilling our constitutional responsibilities.
I am sorry, but the Senator knows the rules of the House.
I am going to press the amendment and it will be up to the Members on the other side to decide if they agree with the Minister's weak response.
- Leyden, Terry.
- Mooney, Paschal.
- Ó Murchú, Labhrás.
- Walsh, Jim.
- Wilson, Diarmuid.
- Bacik, Ivana.
- Brennan, Terry.
- Burke, Colm.
- Cahill, Máiría.
- Coghlan, Eamonn.
- Cummins, Maurice.
- Gilroy, John.
- Hayden, Aideen.
- Henry, Imelda.
- Keane, Cáit.
- Kelly, John.
- Moloney, Marie.
- Moran, Mary.
- Mulcahy, Tony.
- Mullins, Michael.
- Noone, Catherine.
- Norris, David.
- O'Brien, Mary Ann.
- O'Donnell, Marie-Louise.
- O'Neill, Pat.
- van Turnhout, Jillian.
Amendment Nos. 23 to 26, inclusive, and 45 are related and may be discussed together.
I am conscious that these very important amendments have been introduced at what might be a late Stage of the debate on the Bill in this House. They are a response to the amendments in which Senators Katherine Zappone, Jillian van Turnhout and others have had a particular interest. Detailed discussions have been held with Senators on the approach to this section. I thank all Senators who have made contributions to the discussions. This has been a technically difficult part of the legislation on which to work. The contributions have been very carefully considered, legal advice has been sought and we have worked with the Office of the Parliamentary Counsel and the Office of the Attorney General on the amendments.
There are four sections proposed which are at the core of the amendments. I draw the attention of Members to the proposed section 21 which creates the offence of a sexual act with a protected person. In order to define the persons who require protection under this provision and to move away from the status-based approach that was followed in section 5 of the Criminal Law (Sexual Offences) Act 1993 which it is agreed needs to be changed, a functional test as to the capacity of a person with a mental or intellectual disability or a mental illness has been adopted. Essentially, the offence arises where a person engages in a sexual act with a person who they know lacks the capacity to consent to the sexual act by reasons of a mental or intellectual disability or mental illness. The offence also arises if the person is reckless as to the capacity of the protected person to consent to the sexual act. A lack of capacity to consent to a sexual act is defined in subsection (7) of the proposed section 21 and arises where the person is incapable, by reason of a disability, incapacity or illness, of understanding the nature or the reasonable foreseeable consequences of the sexual act; to evaluate relevant information for the purpose of deciding whether to engage in the act; or to communicate his or her consent to the act.
There is no presumption that a disability or an illness of itself gives rise to an incapacity to consent. However, where a disability or an illness does mean that a person is incapable of understanding the act, evaluating relevant information or communicating consent, there would be no capacity to consent. This approach is in line with the UN Convention on the Rights of Persons with Disabilities which requires respect for the full participation in society of persons with disabilities and to which the Government is committed, as well as appropriate protection for those who lack capacity to consent to such an act owing to the nature of the disability. The amendment will introduce the required provision.
There is a second offence of inviting, inducing, counselling or inciting a person to engage in a sexual act where they lack capacity to consent by reason of the said disability or illness. Again, I repeat, there is no offence committed where there is capacity to consent. These offences clarify in law the approach advocated under the UN Convention and by the Law Reform Commission and address a number of the issues raised by and on behalf of various interest groups.
In regard to the other amendments which have been proposed, the meaning of "sexual act" is expanded in the proposed section 20 from that set out in the 1993 Act. It includes the acts described in section 3(1) or 4(1) of the Criminal Law (Rape) (Amendment) Act 1990 which would amount to a rape or aggravated sexual assault. It also, importantly, includes the wide range of acts done without consent that would amount to sexual assault. This also responds to a number of calls to expand the meaning of "sexual act" under the 1993 Act. I hope this meets the concerns people had and the need to develop our legislation in order that it respects the rights of those who may be dependent in other ways but respects their rights to have relationships, effectively. That is what the amendment is doing.
I will highlight one or two other aspects of the amendment. The proposed section 22 retains the provision from the 1993 Act which confirms that no proceedings for an offence under this Part will be brought, except with the consent of the Director of Public Prosecutions. That is an important provision.
Section 23 will repeal section 5 of the 1993 Act about which many people had concerns. It will also repeal section 6(2) of that Act which contained an offence of soliciting for the purpose of prostitution a mentally impaired person. I think these proposals address a very important and complex subject which was discussed in the course of the legislation in the House and on Committee Stage some time ago.
I commend thee amendments to the House.
I am not opposed to the amendments in general, but I have a couple of queries. The first concerns the use of the word "buggery". It does not occur elsewhere in the Bill, as far as I understand. It is an antique and imprecise phrase. It originated in the middle ages with an accusation against the Albigensian heresy of unnatural sexual relations as was then considered by the Papal states. The term "buggery" actually comes from the Middle French, bougre, meaning a Bulgarian because that is where the Albigensians originated. It is antique and imprecise. Buggery as understood in Irish law, simply means anal intercourse, engaged in either by a man and a man or a man and a woman or a woman and a woman with mechanical assistance. I just wonder why this antique phrase is used, particularly when it is not used in other parts of the Bill.
There is also the question of a sexual act with protected person. The people of diminished capacity certainly need to be protected. There is no question or doubt about that, but I am glad that the Minister also recognised the entitlement of people with restricted mental capacity to engage in sexual relations. I think this is important. I will make one point from my own experience. Quite a number of years ago I was contacted about and dealt with a case where a man was jailed for having a sexual relationship with a person who was determined to be of diminished mental capacity. There was no external evidence of this. Apparently, the person looked perfectly normal. There was not much indication in speech or anything else of this, but yet he was convicted. It turned out that the other person involved had routinely engaged in sexual activity with other adults and then blackmailed them. I think that was a bit ridiculous. We need to be careful. Of course, the principal imperative is to protect people of diminished responsibility and also to guarantee their rights. We also need to bear in mind very unusual cases such as the cases that are brought to the attention of the Seanad, but I am not opposed to the amendments and do not propose to call a vote.
I thank the Minister for bringing forward this amendment in response to my colleague, Senator Katherine Zappone, who raised this issue on Second and Committee Stages. I know that she would have preferred if the Minister had taken the approach set out in amendment No. 45 in regard to the offence of abuse of the position of dependence and trust, but I appreciate what the Minister is doing.
It is just a small point. In the context of the language being used-----
I am listening.
I did not want to distract the Minister.
The Senator may go ahead.
Subsection (1) of the proposed section 21 refers to a person who engages in a sexual act with a protected person knowing that that person is a protected person, while subsection (2) refers to a person who invites, induces etc. a protected person knowing that that person is a protected person. The reason I raise this issue is that a case has finished in the courts where an unfortunate victim of a rape by a non-Irish national was a Down's syndrome individual. If my reading is correct, the main plank of the defence, according to media reports, was that the individual who was convicted, rightly so, was not aware and did not know the concept of Down's syndrome because he came from Pakistan or some small village or wherever else. It was the main plank of the defence, if my reading of it is correct.
Yes, it was.
I was only just curious. It is a minor detail as to why if the language indicates they have to know, whereas in this instance it did not matter, it was irrelevant whether he knew. The actual act was a criminal offence and the judge found accordingly and the convicted person is awaiting sentence. Let us see what happens.
I advise Senator David Norris that the term is used in existing law. It is used here in the same context as sexual intercourse, also described as an act under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 which involves penetration and that these are commonly used and understood in this area of law. There is a precedent.
On the points made by Senator Jillian van Turnhout, we have tried to take on board the substance to deal with the issues which the Law Reform Commission felt needed to dealt with in this area which were not being dealt with under section 5 of the 1993 Act. That section 5 did not really make allowance for the fact that a person incapable of living an independent life may, nonetheless, be capable of giving consent to a sexual act. It was strongly believed and all of the recommendations indicated that section 5 of the 1993 Act failed to respect the autonomy of individuals solely on their status rather than capacity. We have also widened the range of offences because the Law Reform Commission also stated that was an issue.
On the last point as to how the lack of capacity of the protected person would be proved in court, the way that is done is that evidence of the person's capacity could be shown through the victim's own testimony, the testimony of close family or others who know them or, as has been the case, expert evidence of persons with knowledge of a particular disability or illness and the impact of such on the individual's capacity at the time the act took place.
Amendments Nos. 28 to 31, inclusive, are related. Amendments Nos. 29 and 30 are physical alternatives to Amendment No. 28. Amendments Nos. 28 to 31, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.
These amendments follow a review of the penalties for prostitution offences. The offences for which I am increasing the penalty in this amendment - organising prostitution, living on the earnings of prostitution and brothel-keeping - are central to the exploitation of vulnerable women and men who find themselves engaged in prostitution. Increasing the penalties to the maximum available for summary convictions reflects the seriousness with which we view these offences. The amendment also introduces a change to the powers of arrest provisions in section 13 of the Criminal Law (Sexual Offences) Act 1993. The amendment adds the new section 7A of the 1993 Act inserted by the Bill to provide an offence of payment for sexual activity with a prostitute to the list of offences in section 13 for which a person may be arrested without warrant or required to give his or her name and address to a member of An Garda Síochána when asked to do so. This is a necessary power for the Garda to have to ensure the new offence of payment for sexual activity with a prostitute is enforceable.
I want to make points about some of the other amendments which have been proposed by Senators. Amendment No. 31 proposes increasing the penalty for the organisation of prostitution. I support the Senators' proposal. As I have outlined, my own amendment also proposes an increase to the penalty for this offence. The maximum penalty that can be imposed on summary conviction is a class A fine, that is, €5,000, and that is what I am proposing. I do not propose increasing the maximum fine available for conviction or indictment, as proposed by the Senators. Senators may wish to note that the fine was increased by the Fines Act 2010 and stands at €22,220. There is also a significant term of imprisonment available for conviction on indictment.
Amendment Nos. 29 and 30 concern the offence of solicitation. Their effect would be to delete section 7 of the Criminal Law (Sexual Offences) Act 1993 in its entirety and I do not believe that was the intention. That section provides for the offence of soliciting for the purposes of prostitution. Following an amendment to the section which was agreed to by the House on Committee Stage, the Bill will remove men and women offering their services as prostitutes from the offence of soliciting, limiting the offence to buyers and pimps only. Retaining the offence of soliciting for buyers and pimps is in line with the principle of criminalising the purchase of sexual services while ensuring those selling such services do not commit any offence. Therefore, I will not accept the amendments because they would be contrary to what the amendments accepted on Committee Stage in the House which were introduced in the Bill to tackle demand for prostitution and deal with the extreme trafficking of women we are seeing across Europe. An extremely large proportion of women being trafficked are being trafficked for the purposes of prostitution.
I oppose these amendments. I attempted to table amendments and signally failed to find a single person in this House who would second my amendments, even for the sake of having a discussion. I find that quite astonishing. It shows a totally closed mind. I recall about 20 years ago when Maggie Thatcher was introducing a provision known as section 28 in the light of a book that had been produced in Denmark. It was called Maggie Lives With Joe and Fred or something like that. It was the story of two gay men, one of whom had left his wife, with whom he had had a daughter, and set up a relationship with another man. They established this relationship and the daughter came to stay with them on weekends. When they went out shopping, a neighbour shouted at them "abuse". The parent of the child said that was only Mrs. So-and-so who was upset and bewildered because in most cases a man formed a relationship with a woman but that in a minority of cases, people of the same sex formed relationships. It was eminently sensible, a perfectly reasonable, decent and understandable thing, but it was used by Maggie Thatcher to introduce this legislation which prohibited what they called the "propagandisation" of homosexuality, as if it needed any propaganda, being a part of human nature.
On that occasion, I also signally failed to find a single voice in Seanad Éireann that would support an amendment or sign a motion on the topic. I found that astonishing and find it astonishing today that the serious concerns I have about this legislation have been met with a resounding silence, despite the clear balance of scientific evidence I am opposing these changes to the law. If one looks at the results in Sweden, the progress report published in Gothenburg showed an increase in trafficking of 106% between 2008 and 2010. The number of reported cases of sexual services sold increased by 569%. That is with this sort of legislation. That is the effect it has had - absolutely none.
Then we have to take into account the medical situation, about which I will say a little more. It relates to the matter of AIDS. UN committees are coming out to state it is disastrous, while there are articles in The Lancet stating full decriminalisation would result in a 40% decrease in the number of HIV cases. That is the most senior medical authority there is. Obviously, I am concerned.
I am even more concerned that there is no review or evaluation process of the impact. If we are told it is going to have this impact, what is the Government afraid of in assessing and evaluating its effect? There is nothing in the Bill, despite the pleas I made on Second and Committee Stages that there be this evaluation process to find out whether it is working. There has been complete silence from the Government. On the other hand, it accepted an amendment to strengthen the Criminal Justice (Public Order) Act 1994 to target and further criminalise sex workers on the street, some of whom are the most marginalised people in our society. If it continues to support section 20, it must decriminalise people who sell sexual services on the street, as well as people who work indoors for safety and include a two-year review of the law to assess its impact on the lives of sex workers.
Why should we have a review of section 20? First, it would protect human rights. One of the most senior bodies concerned with human rights in this country and which is universally respected is Amnesty International. It has included a plea for the inclusion of a review in its comprehensive submission to the Minister for Justice and Equality. I do not know whether she read it. Perhaps she did, or perhaps this task was devolved to a menial in the Department. It was a submission to the Minister on the human rights concerns that criminalising the purchase of sexual services would hurt the most marginalised sex workers. It was based on Amnesty International's research in Norway, where it was introduced in 2003, and evidence from various other health and academic institutions.
I am sure the Minister is familiar with the submission of Amnesty International.
Second, it is a question of ensuring robust, comprehensive and responsible legislating. In Sweden where this kind of material was introduced in 1998 the effect and impact are evaluated regularly. We do not do so here, although we are slavishly following the defective Swedish model. Some 20 scope interviews have been conducted by the Swedish National Board of Health and Welfare. The Oireachtas Joint Committee on Justice, Defence and Equality, in its report of 2013 on hearings and submissions on the review of legislation on prostitution, also recommended regular evaluation. It states the State should commission appropriate, independent studies to increase its understanding of prostitution and trafficking. Further such studies should be undertaken at regular intervals to evaluate independently the effectiveness of legal and policy measures concerning prostitution and trafficking and to recommend changes, where required. This is the statement of the Oireachtas’s own committee. Will the Minister tell the House the problem with the evaluation of the impact of this legislation? Is she afraid that the truth will emerge when it is too late, when this legislation has been passed?
Third, there is a lack of evidence. In the past ten years there has been no comprehensive, independent research undertaken by the Government or independent university academic institutions in the State into the situation of sex workers in the Republic of Ireland. In effect, we are attempting to change laws without knowing if and why the current laws are not working or protecting marginalised people in vulnerable situations. In addition, the Swedish Government, despite regular reviews and evaluation of this kind of legislation by different departments, has not been able to prove that the number of people paying for sexual services has fallen or that the number of people engaged in selling sexual services has decreased. Therefore, there is a complete failure of evidence, even from the Swedish model, to which we are giving such devotion.
In 2014 in Sweden the report stated there had been a gradual increase in the number of foreign women engaged in street prostitution in the past 20 years. This is with the effective operation of this kind of legislation in Sweden. It was stated in 2014 that it was possible to note an increase over the preceding two years in the number of women coming from Romania. It is difficult to draw any conclusions other than the fact that no great changes have taken place in Sweden and that the number of individuals buying sexual services appears to be fairly stable. Let that sink in. It has had no impact. There has been an increase, yet we are making the lives of these women more difficult and exposing the population to a greater risk of infection from HIV.
My fourth point is on assessing the impact of this kind of legislation on health and HIV. There is a wealth of evidence and research from national and international health experts that shows the detrimental impact this kind of legislation has had on the health of sex workers and wider public policy. HIV rates in Ireland are increasing, with an upward trend of new cases since 2013. HIV Ireland cites evidence that criminalisation creates circumstances that result in the spread of HIV. Again, I am not referring to middle-class spurious experts with their paternalistic view of sex workers but to people who are centrally and directly involved in dealing with HIV. They strongly support decriminalisation as the best model to prevent further increases in transmission. I ask the Minister to take that on board. We are talking not about a kind of hypocritical moral stance but about the welfare and medical well-being of citizens of the State. According to the World Health Organization, decriminalisation of sex work could "avert the largest percentage of HIV infections in sex workers and clients". There is talk of a decrease in the order of 33% to 46% during the next decade. These are facts that need to be taken into account.
On sex workers themselves, how patronising it is to listen to people determining that all these women and men are victims, no matter what they say themselves. They may say they are not victims. Some of them say they get pleasure from their job and others say they do it to keep their families going. Despite this, they are not allowed to categorise themselves and they must be victims because these feminists and ex-nuns have decided that they are victims. How paternalistic is that? How patronising is it? The odd cackle from the backbenches on the other side of the House will not deter me from what I am saying and will not take away from the factual nature of the evidence. Not one fact that I have given so far has been challenged in this House.
On a point of order, we have listened to Senator David Norris make yet another speech against the policy that has been endorsed unanimously by the Joint Committee on Justice, Defence and Equality and that is at the heart of the provision we are debating.
I am still perfectly entitled to have my say on it.
No. The Senator is effectively making another Second Stage speech, having filibustered on and delayed on Committee Stage.
I am talking about the insertion of a new section. This is a classic attempt by the middle classes to stifle debate.
I have no intention of being silenced. The Chair can throw me out of the House, but I will not be silenced.
On a point of order, the Senator has been challenged on every point he has raised, both on Second Stage and Committee Stage, by the Minister and a number of us. He is factually inaccurate in suggesting what he said-----
Senator David Norris should resume his seat. He is not entitled to make a Second Stage speech. He should speak to the amendments.
I am not making a Second Stage speech.
The Senator is.
I am addressing the amendments directly.
No, the Senator is not.
Yes, I am.
If Senator Ivana Bacik had been listening to me, instead of gossiping and occupying herself with Twitter, she might be in a better position to know whether-----
I have been listening to the Senator ad nauseam.
I am on the amendments and will stay on them.
It is not nice to shout down a lady.
I beg your pardon?
I am sorry; I thought I heard a noise over there.
We are hearing plenty of noise from that side.
Senator David Norris to continue, without interruption.
What about the position of sex workers? What I have to hand is material I have not used before. It is new material that has come to me in recent days. Sex workers do not support this legislation. The majority of sex workers in sex worker-led organisations across the world, including those in Ireland, do not support the criminalisation of the purchase of sex. Many sex workers have spoken about the dangers and risks they face when this kind of legislation is introduced. In Canada which also uses the Swedish model an increased police presence has decreased sex workers’ ability to use the police for protection. Workers have to stay out for longer hours and in more clandestine locations. For example, Violet, a female sex worker, stated:
Because of being so cold and being harassed I got into a car where I normally wouldn’t have. […] [H]e put something to my throat. And I had to do it for nothing.
This is the kind of circumstance towards which we are heading. A Norwegian female sex worker said:
If a customer is bad you need to manage it yourself to the end. You only call the police if you think you are going to die. If you call the police, you lose everything.
This is the evidence from the coalface. Research commissioned in 2014 by the Northern Ireland Department of Justice found that 98% of sex workers interviewed did not support the criminalisation of clients. Why are they not listened to?
On the question of trafficking and organised crime, any coercion or trafficking will become more difficult to tackle under this legislation because it presents disincentives to the reporting of abuse. To avoid being under police scrutiny and, therefore, risking the loss of income and housing and the placing of children in custody, sex workers are less likely to report any abuse suffered.
In a 2011 interview a Swedish client recalled three separate occasions on which he had witnessed what he suspected was trafficking. He did not go through with the transaction and then did not report to the authorities for fear of legal consequences. This is the impact on trafficking and direct evidence from people involved in these transactions. Like Amnesty International, I am not advocating prostitution. I do not think it is an ideal way of life, but I am interested in the welfare and protection of those who are involved in it and their clients.
In Sweden, in 2010, the police board reported that serious organised crime, including prostitution and trafficking, had increased in strength, power and complexity in the past decade. There has simply been no concrete evidence produced in Sweden or elsewhere that criminalising the purchase of sex decreases the number of incidents of trafficking for sexual exploitation. I would like to hear that being challenged. Where is the effect of the legislation of which we are told?
Ruhama has rubbished the claim of some of these women that it involved flexible working hours in order that they could look after their children. The women believe they are protected by the constitutional protection of the family. One of the single most significant factors compelling women into sex work is the need to make adequate provision for their children not only materially but also physically, emotionally and psychologically. Even if they can find alternative work adequate to meeting the material needs of their families, they have no access to affordable child care of any kind, let alone what would meet their other equally important needs. Even a street worker can make the equivalent of the minimum wage in a single evening, which not only represents a dramatic reduction in the hours of child-minding required but also in the quality of care required to meet her children’s physical, emotional and psychological needs for such a short period of time when her children are likely to be sleeping. Many indoor sex workers are making more than the industrial wage in four or five days a month using full-time care for those days similar to respite care routinely provided for special needs children and devoting the rest of the time to their duties in their home.
Much is made in support of the amendment which is really a rejigging of the original section. Much is made of the 800 submissions received by the Government, but it does not state it was inundated with signed hard copies of the turn off the red light form letter, some of which had not even bothered to delete instructions such as "put your name here". It is laughable. It is a circular letter.
I am a member of three trade unions and they have come out in support of this, but not one of them consulted me or any of their other members before throwing their support behind this legislation and this kind of amendment, which is the principal reason I oppose the Bill. There are many excellent things in it - the protection of children, the protection of people with mental difficulties and so on and so forth - but this is a terrible amendment and a terrible situation in law. The Government which has been progressive in so many allied areas such as the Thirty-fourth Amendment of the Constitution. (Marriage Equality) Bill 2015 is making this disastrous jump backwards. I know that the Bill will be forced through here tonight, either because we come to the end of the debate or because we are threatened with a guillotine, but it will then have to go to the Dáil and I strongly hope there will be voices in there that will echo my lone voice in this Chamber.
The National Police Board of Sweden stated in March 2010 that serious organised crime, including prostitution and trafficking, had increased in strength power and complexity in the past decade. It constitutes a serious social problem in Sweden and organised crime makes large amounts of money from the exploitation and trafficking of people under slave-like conditions. This is a decade and more after the legislation was passed.
A report commissioned by the Department of Justice in Northern Ireland stated:
Our findings suggest that there are no easy solutions to effectively regulate prostitution and tackle sex trafficking. For example, both the Swedish (neo-abolitionism) and the Dutch (regulationism) regimes appear to record continuous sex trafficking despite shared objectives to the contrary. [In other words, it just does not work.]
Given the complexity of the social and legal realities surrounding prostitution, there are significant problems with identifying causes and effects, i.e. it is not always clear if a policy measure – or some other variable – caused a specific change. [In other words, we do not know the sequence of cause and effect.] In regard to the Swedish approach all claims about pre and post law trends are challenged by the lack of sound figures for the sex industry prior to 1999 [when the legislation was introduced].
No firm conclusions can be drawn about the relationship between the sex purchase ban and patterns of sex trafficking into Sweden.
There is also no clear evidence on the relationship between the type of prostitution regime and the impact on the number of sex workers.
There is no information. What are we doing? In the absence of information, we are introducing these amendments. Their purpose, unlike the rest of the Bill, is to criminalise the purchase of sex, one side of a transaction. It is like criminalising the purchaser of a small amount of cannabis, leaving the drug pusher to go unscathed.
It is not.
It is not.
The report continues:
There is, however, evidence that health and safety of those selling sex is improved in non-criminalisation regimes (New Zealand) and within the legal segments of regulationism (Netherlands).
Criminalisation of clients is not considered a useful or effective policy measure by the vast majority of sex workers.
The Senator is making a Second Stage speech.
I am not. I am addressing the amendments directly. The amendments amount to legislation on their own. They introduce a completely new concept into Irish law. That is why I am taking the opportunity because it is the only one I will get. I cannot speak a second time and want to put my arguments in the Official Report. It is only 3.15 p.m. and we have until 5 p.m. The report states:
Sex workers worry about a potential decrease in security, worse working conditions and increased risks if paying for sex was criminalised.
Some sex workers are concerned about the loss of decent clients and an increase of violent clients, and an increased involvement of organised crime groups and ‘pimps’.
That is who we should be going after, the pimps, not the mainly women who are involved.
That is what we are doing.
It is ridiculous. These are the people involved in the activity the Government is criminalising. Are their voices never to be heard? Even though mine is the sole voice taking this position in the House, is it to be silenced also? Is that the Government's notion of democracy and open and transparent government? I do not think it is very much like that. The report states: "The proposed law aims to criminalise the buyer but not the seller". That is the direct point of the amendments. It is this amendment to which I am objecting.
On a point of order, the amendment simply repeats what is already in section 20. If the Senator looks carefully at amendment No. 28, he will see the only changes it makes are to penalties and the arrest power. The amendment is simply restating the provision that is already in section 20 otherwise in terms of policy. We have already heard from the Senator on Second and Committee Stages, when he made a long Second Stage speech on each occasion outlining his opposition to the policy at issue in section 20, but that is not at issue in this amendment.
This is restating the whole issue. It is the only section of the law where this is dealt with and I am directly addressing the words of the amendment. They are repeated here - this business about criminalising the purchase of sex. It is included in the amendment.
The Senator is repeating himself, too.
If it was not in the amendment, why write those words down?
The Senator is being very unfair to the other Members who want to contribute on the amendments.
Then there is nothing to stop Members from extending the time allowed.
To be honest, they cannot all make Second Stage speeches.
I am not making a Second Stage speech; I am addressing the amendment directly.
The research findings from Northern Ireland continued by stating the proposed law aimed to criminalise the buyer but not the seller. It noted that the sex workers interviewed for the study felt this did not reflect the reality of selling sex and that sex workers felt criminalised under the current law that, for example, did not allow sex workers to work in the same location for safety reasons, as this could be classed as brothel-keeping. The findings continue by stating:
They do not see how criminalising clients would reduce the pressure of criminalisation on them. Our results suggest that criminalising paying for sex would be ineffective in reducing demand. Only 7% of clients said they would stop paying for sex altogether if it was criminalised.
That is the effect of it; 7% would stop. What about the remaining 93%?
The 93% are breaking the law.
The findings continued by noting the views of service providers in Northern Ireland on the effects of a sex purchase ban varied. Some stated they supported the proposed law because it was based on their understanding that all forms of prostitution were exploitation, while others expressed concern about the negative effects such a law would have on the well-being and safety of sex workers and the effectiveness of the law in reducing demand and sex trafficking. Interviewees from the Police Service of Northern Ireland, PSNI, highlighted a number of issues regarding the sex purchase ban, including the lack of sufficient resources to police effectively the proposed new law. In respect of the new amendments, will the Minister supply adequate resources to police them? Will the money be available to enforce them? The PSNI interviewees were taking into account competing demands, as well as significant problems with producing evidence and prosecuting clients. For example, they noted that some covert tactics used in Sweden and other European countries were not available in Northern Ireland. In summary, PSNI officers stated that in their opinion, a sex purchase ban would be difficult to enforce and police and would be largely ineffective. In other words, the Police Service of Northern Ireland is of the opinion such a ban would be difficult to enforce and largely ineffective. This makes one wonder and worry about the implementation of this measure.
The Norwegian Government inquiry reported the following:
The Swedish street prostitutes experience a tougher time. They are more frequently exposed to dangerous clients, while the serious clients are afraid of being arrested. Prohibition will never be able to stop the purchase and sale of sex. It could only make conditions worse for the prostitutes. They have less time to assess the client as the deal takes place very hurriedly due to fear on the part of the client. They (the prostitutes) are exposed to violence and sexually transmitted diseases. If the client demands unprotected sex, many of the prostitutes cannot afford to say no. Harassment by the police has increased and the clients no longer provide tip-offs about pimps, for fear of being arrested themselves. The social workers working on the streets have problems reaching them. They (the prostitutes) use pimps for protection.
This legislation actually increases the number of pimps involved and that is the position as reported by the Norwegian Minister for Justice. The same Norwegian Minister for Justice talks about a general problem with statistics from Sweden, since they are highly uncertain. It has been noted that the problem with claims about effectiveness from Sweden is they do not appear to be supported by the available facts or research. One study states:
As soon as the official evaluation was published, it was... criticized from several directions. In the consultation process following the publication of the evaluation, the critique was especially harsh from those referral bodies who conduct prostitution research, and those working with health and discrimination issues (when law amendments are proposed in an official inquiry the report is circulated for consultation before it undergoes further preparation). [This is the response had from those organisations involved in academic inquiry into prostitution.] The criticism has primarily been focused on the evaluation’s lack of scientific rigor: it did not have an objective starting point, since the terms of reference given were that the purchase of sex must continue to be illegal [in other words, one enshrines one's aims before having the discussion]; there was not a satisfying definition of prostitution; it did not take into account ideology, method, sources and possible confounding factors; there were inconsistencies, contradictions, haphazard referencing, irrelevant or flawed comparisons and conclusions were made without factual backup and were at times of a speculative character.
Continuing the idea of the hardships visited on the people concerned, mainly women, in these circumstances, because of the legislation in Norway, the police has actively targeted the landlords of prostitutes and rendered them homeless. In what sense could this be construed as protecting the rights of these women sex workers? The criminalisation of the purchase of sex has also had an impact in the Scandinavian countries on HIV protection and harm reduction. Condom distribution to sex workers and clients has been publicly criticised for encouraging sex work and running contrary to the law and has been scaled back in at least one area of Sweden since the passage of the law. Consequently, it is even affecting the distribution of condoms.
I am coming towards the end and ask for the indulgence of the House because, as I stated, this is the only opportunity I will have. One key finding of a survey of the situation in the United Kingdom was that the large majority of interviewed migrant client workers in the UK sex industry were not forced or trafficked. There has been a conflation between prostitution and trafficking, but the findings of independent research have shown the majority of migrant workers are not trafficked. It also was found that immigration status was by far the most important factor restricting the migrant workers' ability to exercise their rights in their professional and private lives and that working in the sex industry often was a way for migrants to avoid the unrewarding and sometimes exploitative conditions they met in non-sexual jobs. The survey found that by working in the sex industry, many interviewees were able to maintain dignified living standards in the United Kingdom, while dramatically improving the living conditions of their families in the country of origin.
As I stated, a report by Amnesty International has stated the criminalisation of sex work increasingly is being recognised as a human rights concern. The United Nations special rapporteur on the right to health, not some fly-by-night radical, has explicitly called for decriminalisation of sex work. The final report of the Global Commission on HIV and the Law, an independent body convened by the United Nations Development Programme, UNDP, on behalf of the Joint United Nations Programme on HIV-AIDS, UNAIDS, has made the same call. The commission deliberated over a two-year period and undertook extensive analysis and research, including seven regional dialogues on the links between legal framework, human rights and HIV. I reiterate that this is the United Nations. Are Members not prepared to listen? Is the one voice that is raising this issue in this House to be stifled? The UNAIDS advisory group on HIV and sex workers recommended that states should move away from criminalising sex work or activities associated with it. It also recommended that decriminalisation of sex work should include removing criminal penalties for the purchase and sale of sex. I reiterate that this is a recommendation by the UNAIDS advisory group on HIV. Is no one listening? As for the management of sex workers in brothels and other activities related to sex work, the group recommended that to the degree that states retain non-criminal administrative law or regulations governing sex work, these should be applied in ways that do not violate sex workers' right to dignity and that ensure their enjoyment of due process of law.
The World Health Organization calls for all countries to work towards the decriminalisation of sex work and the elimination of the unjust application of non-criminal laws and regulations against sex workers. The International Labour Organization, ILO, has called on governments to recognise sex work as an economic sector and a legal occupation with protection under labour law and social security and health regulations. Human Rights Watch, the Open Society Foundations and Anti-Slavery International, among other non-governmental groups, also have called for the decriminalisation of sex work. These are a variety of extremely important organisations engaged in health and human rights around the world and they all have taken a position that is directly in contravention of what the Government proposes in the amendments.
There is not the slightest scrap of international research that the so-called Swedish model has reduced trafficking in the community. In fact, the Government in Sweden has admitted this. The Republic of Ireland and the United Kingdom scored better in a recent survey, the Global Slavery Index, than Sweden, yet we do not have these provisions but Sweden does. The Swedish Forum for Human Rights confirmed the trafficking of more than 166 children between 2008 and 2011 and the loss of more than 438 immigrant children in 2011 alone.
I will leave it at that. With the indulgence of the House and despite interruptions, I have been permitted to make a strong case to ask the Government to think again on this matter because there are serious health concerns. It is irresponsible to force through such legislation without an adequate or a balanced debate on the subject. It is surely unbalanced when one person and one person alone in a House with 60 Members is prepared to stand up and oppose these legislative proposals. I know full well why they are being enacted. A survey in the North of Ireland which looked at this situation and the response to it concluded that, while 98% of the women involved were against it, 80% of voters were in favour of it. This is like the material we had yesterday about destroying hedges, which flies in the face of all-----
The Senator is straying from the amendment.
I am not. I am demonstrating a principle and coming to an end. Yesterday’s material flew in the face of the principle of environmental protection. It was just a sop to the farmers in the light of the coming general election. This similarly is a sop to the sentimental ideas of a largely middle class group of people who care nothing for the health and welfare of the women involved.
It is welcome that the Minister has taken on board many of the points made on Committee Stage, particularly on the amendments we put forward. I note the increase in the fines. It is welcome that the Minister has taken on board the principle we put forward on the decriminalisation of women who sell sexual services. Accordingly, I will not be pressing amendments Nos. 29 to 31, inclusive. I hope we get through this legislation speedily and have it passed.
I welcome amendment No. 28 which restates the core principle in section 20 of the original version of the Bill to criminalise the purchase of sex. It also decriminalises the sale of sex and the person, usually a woman, engaged in prostitution. Senator David Norris failed to take this on board in his polemic against the amendment and the policy at issue. The policy, so clearly outlined by the Minister and other Members on Second Stage, is that of tackling demand by decriminalising the seller but criminalising the purchaser, the client. This is a policy the Joint Committee on Justice, Defence and Equality endorsed unanimously in its 2013 report. Senator David Norris is so carried away with his own rhetoric that he missed that key point. This is very much an evidence-based legislative reform. It is based on evidence the committee heard, on a visit it made to Sweden and reports it read. It is also based on a recognition of the reality of prostitution and the exploitation involved in prostitution, rather than some romanticised or rose-tinted view of prostitution as a freely entered into contract between two equal individuals. That is very far from the reality.
Senator David Norris made some outrageous claims about the proportionate effect of the amendment and the provision included in section 20-----
I was quoting from government reports from Norway and Sweden.
-----suggesting, for example, that women engaged in prostitution because the hours were convenient if one had children. I am sorry, but that is just ridiculous.
That is what they said.
Senator Ivana Bacik to continue, without interruption.
Senator Ivana Bacik may consider it ridiculous, but she is just trashing the women involved.
With respect, the Senator spoke for half an hour - I timed it - having already made extremely lengthy speeches on Committee Stage in attempts to filibuster the Bill. I am happy that we will be able to conclude Report Stage in the Seanad today.
There is a fundamental contradiction in the Senator’s arguments because he disparages and insults, as well as belittles, those of us who are supporting the Bill as being in some way unrepresentative, yet he points out he cannot get anyone to support him in his opposition to it. Perhaps all of us in this House who support this provision have been persuaded by the evidence. Perhaps we are not just a minority of feminists and ex-nuns as he suggested.
They are supporting it because they are afraid.
The provision is evidence-based. We have challenged every assertion the Senator has made on Second and Committee Stages. The 2013 Joint Committee on Justice, Defence and Equality report unanimously endorsed on a cross-party basis also debunks the arguments he made. We looked at the 2010 Swedish evaluation of the law and visited Sweden in 2012. We looked subsequently at the Northern Ireland report which was based on interviews with 18 individuals.
It was wrong.
I note also that legislators in Northern Ireland, Canada, Norway and Iceland have followed suit in adopting the Swedish approach, while it is under consideration in Britain and France, as it is elsewhere. The reality is that our model of law enforcement in prostitution is not working. A model which approaches it instead from the point of view of tackling demand, decriminalising the sellers and criminalising the purchasers is a better way in which to tackle exploitation. That is why I strongly support amendment No. 28. It restates the key provisions in section 20 of the original legislation. By changing the definition of "soliciting" or "importuning" in section 1 of the 1993 Act, it clearly decriminalises the seller of sex, which is welcome. It also increases the penalties for the offences of soliciting or importuning from the client’s point of view and the organisation of prostitution, living off the earnings from prostitution and brothel keeping. I particularly welcome the amendment of section 13 of the 1993 Act which allows for power of arrest for the new offence in section 7A. That is the provision I specifically sought on Committee Stage. I am glad to see it included as it will make the legislation clearly workable and enforceable by the Garda.
On Committee Stage I expressed a concern about an amendment made to insert section 21 which will make it an offence to fail to comply with a Garda direction where a person is offering their services as a prostitute while loitering. This might lead to harassment of the people who we are decriminalising, namely, those engaged in selling sexual services. I accept that it is not criminalising, but it enables the use of Garda powers against them. Will the Minister look at the wording of this provision? There is a technical point about the wording, too. Section 8(1) of the Act currently has an "a" or a "b”. Section 21 would insert a “c” but there is no “or” before it. It is a relatively minor drafting point which might be worth looking at again.
The important policy provision is really deserving of all our support, namely, decriminalising the seller and criminalising the purchaser or client. I cannot see the principled objection to this when anyone recognises the reality involved in the exploitation of prostitution. Any Senator who disagrees with that should find out a little more for himself or herself in looking at the research, meeting the women engaged in prostitution and talking to those engaged in front-line services such as Ruhama and the Immigrant Council of Ireland which has conducted important research into migrant women who are strongly exploited here. I welcome all those in the Visitors Gallery who have been involved in the Turn Off the Red Light campaign to end demand.
I, too, support amendment No. 28. I had not formed my opinion on this issue when I first entered the Seanad. It is something I have researched on my own and then met others to form my opinion. The reality is that the 2009 Kelleher report stated 11% of those trafficked into Ireland for sexual exploitation were under 18 years of age. We know from the Ekberg report of 2004 that the majority of women who enter prostitution first do so as minors. I am not going to get into selective quotes and going back and forth. I want the record to clearly show that I formed my own opinion and looked at the evidence. With the greatest respect, I listened to Senator David Norris on Second and Committee Stages. I re-read the research to ensure I felt a similar strength of opinion on my views. That is why it is good to have a debate and hear dissenting voices.
The Senator has the idea he is in a minority of one and that the rest of the House has come together to ram through this legislation. We are not here to do that. This legislation has been debated considerably in the House. I am part of a group of colleagues which tabled two motions on the issue. It went to the justice committee and a range of submissions were received, the majority of which were in support of the policy approach being taken.
I have listened carefully to the comments made, but I am confirmed in my opinion. I support the amendment and agree with Senator Ivana Bacik who is correct about this matter. I support the proposals to criminalise the purchase of sex, but it is also welcome to see proposals for decriminalising of the sale of sex. This does address some of the issues raised. I would like to make it clear to the House - I am sure it is clear to many of my colleagues - that we can read the evidence and make up our own minds. I like to read the full evidence. I have met people who work in law enforcement in Sweden who have told me a different story from the one presented by Senator David Norris. However, I will not get involved in a back and forth as we have formed our own opinions. I respect Senator David Norris's opinions and ask that he respect-----
I respect the Senator's opinions, but there are those in this House who are bullied into supporting the legislation.
I wanted to make the record absolutely clear.
It is important to state the provisions in the Bill which criminalise the purchase of sexual services have been very much informed by data and evidence. I have read around the issue and met those on different sides of the debate. I refer Senators, Senator David Norris in particular, to the Oireachtas joint committee's report on the matter to see the wide range of research which was presented and submitted to the committee. All of the research, in support of and against criminalisation, was referenced in the report and formed part of the committee's deliberations. The research has formed part of the work we have done in the Department of Justice and Equality on this issue. As this had been worked on since 2012, there was time to look at the various reports and see what was being done in other countries. Northern Ireland has recently taken the same approach we are suggesting.
It is important to look at precisely what is being done in the legislation. Sections 20 and 22 provide two offences for the criminalisation of the purchase of sexual services. The first provision is a general offence of paying to engage in sexual activity with a prostitute. The second is the more serious offence of paying to engage in sexual activity with a trafficked person. I have already outlined to the House the very serious issues and the worldwide increase in the trafficking of vulnerable people, including women, for the purposes of prostitution. Ireland is no exception as we know from the experience of so many of the front-line organisations who work directly with the women concerned and who have been doing so for many years. We know this also from the investigative work. I praise RTE and "Prime Time" for its investigative work and the work of other documentary makers in examining the experiences of trafficked women into Ireland who are brought to various towns around the State and exploited sexually. These trafficked persons often do not even know what country they are in and certainly do not know what town they are in. As Senator Jillian van Turnhout said, there are very disturbing reports of young girls being exploited sexually and who have been trafficked into Ireland. That is the reality we are confronting.
The Council of Europe and the European Parliament have recognised the effectiveness of the criminalisation of the purchase of sexual services as a tool in the fight against human trafficking. It is important to say this. Equally, there is much wider evidence of the exploitation of persons involved in prostitution outside of those who are trafficked such as those who have been coerced or otherwise forced, through circumstances, to engage in that activity. That also needs to be said, including the fact there is a huge amount of exploitation in prostitution and the exploitation takes so many forms. The evidence is strongly emerging that there are very serious criminal gangs involved in both trafficking and the delivery of prostitution services. There is very little control for many of the women who are involved. I have listened to Sex Workers Alliance Ireland and what it has had to say. I have also met the rapporteur on trafficking and exploitation from Sweden who visited Ireland last year and who gave me the up-to-date experience of Sweden. I would like to outline some of it as a response to the debate on the amendments.
First, I will turn to the Norwegian experience and its Government report from August 2015 on evaluations of the law. I will now outline the main findings from that publication. The ban on purchasing sexual services has reduced demand for prostitution and thus contributed to reducing the extent of prostitution in Norway. The enforcement of the law, in combination with the laws against trafficking and pimping, makes Norway a less attractive country for prostitution based trafficking. The report does not find any evidence of more violence against prostitutes after the ban on buying sex entered into force. Young men in Norway - I believe this is an extremely important point - have changed their attitudes towards buying sex. This is an important normative effect given the ambivalence we have seen over decades regarding prostitution. Interviews with police forces indicate that the law has had a normative effect on people's behaviour. Despite a lack of accurate data on the size of the market for prostitution, either before or after 2010, estimates of the current market show a decline in the demand for prostitution after the law was introduced. The reduced market size and an increase in police enforcement have made Norway a less attractive place for human traffickers. That is a report from August 2015.
I will now turn to the official Swedish Government's report. I met the Swedish rapporteur on trafficking, Kajsa Wahlberg, who has extensive first-hand experience in these matters. She represented the views of the Swedish Government to me and her own direct experience. We also have reference to the evaluation made in Sweden, headed by a judge of the Supreme Court, which evaluated how the ban on the purchase of sexual services was working in practice. The starting point for that inquiry was that the purchase of sexual services would continue to be criminalised. The report which was submitted to the Swedish Government statedstreet, indoor or online prostitution had not increased since the introduction of the ban and that the ban on the purchase of sexual services acted as a barrier to the establishment of organised criminal networks involved in such crimes in Sweden. This is very important as we do not want to see criminal gangs coming in to Ireland and establishing criminal networks supporting the development of prostitution.
The Swedish report also found that the ban had strong support in Sweden and a deterrent effect on sex purchasers. The inquiry finally concluded that criminalisation had not adversely affected persons being exploited in prostitution. Clearly there is a role for supporting those organisations who work with women involved in prostitution, in making sure they can reach out to these women and the women can avail of the services. These services have been offered for many years by organisations such as Ruhama when there was little support for that type of service. The Swedish inquiry indicated that the ban on the purchase of sexual services had the intended effect and that it was an important instrument-----
The Minister is just making assertions.
The Minister is to speak, without interruption, please.
I am quoting from the research I have available. Senator David Norris also quoted research.
The Miniser is just quoting assertions.
Please, Senator. The Minister did not interrupt you.
It is important. I am not sure how to describe what the Senator was quoting, but I am quoting from the research I have looked at and that has been made available to me. The ban on the purchase of sexual services has been an important instrument in preventing and combating prostitution and human trafficking for sexual purposes.
That is in two of the countries where this approach was taken some years ago and where there has been time to evaluate the impact. That was precisely the point the Senator was making - the impact ought to be evaluated. We have some very strong research; this is a cutting edge approach and the right thing to do. The proposals have been developed following extensive consultation, dating back to 2012. The new offences implement the recommendations of the Joint Committee on Justice, Defence and Equality which called for the introduction of an offence criminalising the purchase of sexual services. I ask the House to support thee amendments.
As there is only one Teller on the Níl side, the division cannot proceed. I declare the amendment carried.
The Leader wishes to propose a suspension.
I propose a suspension of the sitting for ten minutes until 4.15 p.m.
Amendments Nos. 39 to 41, inclusive, will be discussed together.
I move amendment No. 39:
In page 26, to delete lines 12 to 14 and substitute the following:
"(17)(a) This section and section 19B do not apply where a complainant or witness has expressly waived his or her right to non-disclosure of a relevant record without leave of the court.
(b) No complainant or witness shall be deemed to have expressly waived his or her right to non-disclosure unless he or she has been offered a reasonable opportunity to obtain independent legal advice on the issue of disclosure rights before he or she is asked to sign any document purporting to waive his or her right to non-disclosure of a relevant record without leave of the court.
(18) In addition to the provisions of this section, section 19B shall apply to a relevant record relating to a child.
19B.(1) In this section and in section 19A(18) 'relevant record relating to a child' means a relevant record (or part of such record) relating to a sexual offence or sexual offences alleged to have been committed in respect of a person who was, at the time of the offence, under the age of 18.
(2) Without prejudice to the generality of section 19A, the content of a relevant record relating to a child shall not be disclosed to the accused and shall not be admissible as evidence in criminal proceedings save by order of the court and in compliance with the provisions of this section and section 19A.
(3) In determining an application for disclosure of a relevant record relating to a child, subject to the rules of the relevant court and in addition to the criteria set out in section 19A(9), the court shall take the following factors, in particular, into account:
(a) the extent to which the evidence contained in the relevant record relating to a child has substantial probative value;
(b) whether there is other evidence available to the accused that renders it substantially unnecessary to have regard to the relevant record relating to a child; and
(c) whether the public interest in disclosure or the constitutional and other rights of the accused person or both together outweigh the potential harm to the complainant.”.”.
I wish to raise an issue on third-party disclosures and want to be clear from the outset that I welcome section 34. In June 2013 I tabled amendments to the Courts and Civil Law (Miscellaneous Provisions) Bill concerning the disclosure of third-party records, namely, the counselling and therapy notes of child complainants in sexual offence trials. At the time I expressed my deep concern about the issue of the court ordered disclosure of complainants' confidential records by medical, psychiatric or therapeutic personnel, be the complainant an adult or a child, in the absence of any legislative guidelines. I am delighted to see the issue being addressed in the Bill and support the approach taken to provide standards and guidance for the courts in determining whether to grant an order for the disclosure of a record in dispute.
I agree that an adequate balance has been struck between an adult complainant's right to privacy and the right of the accused person to procedural fairness. However, on further reflection in this regard, I have tabled an additional amendment - amendment No. 40 - which includes the same changes to sections 34(17)(a) and (b) as proposed in amendment No. 39, whereby the provisions of a new section 19A of the Act of 1992 would not apply where complainants or witnesses expressly waive their right to disclosure of a relevant record without leave of the court. I am sure the Minister fully acknowledges and sympathises with the vulnerability of a complainant or a witness during this time. My concern is that the right of a complainant or witness to advice or representation by the Legal Aid Board only kicks in where a decision has been made to prosecute. However, the point at which a complainant or witness is invited to waive his or her rights concerning disclosure often arises at a Garda station when a formal witness statement has been given. I suspect this happens without any real understanding of the implications should the matter proceed to trial. The amendment provides that any express waiver be made subject to independent legal advice or the offer of such advice. I know that the board, with its ample experience on the ground, is very supportive of the safeguard.
The purpose of the new section 19B is to act as an additional layer of protection for child complainants or witnesses in sexual offence trials who are uniquely vulnerable by virtue of their age and the heinousness of the abuse perpetrated against them. To understand the difficulty thrown up by an increasing number of blanket requests from the Office of the Director of Public Prosecutions for disclosure of details of children's private and confidential counselling sessions, it is important to understand the therapeutic process happens in two distinct phases. The first phase is the compilation of an assessment report which records the baseline account - the who, what, where and when - of the abuse the child is alleging. It is clearly material evidence relevant to a criminal investigation in a trial and is rightly subject to disclosure.
The second phase is the therapy. The therapy notes are concerned with documenting the child's feelings, thoughts, hopes, fears and dreams. If any information arises in the course of the therapy phase which substantively alters the account given in the assessment report, the practitioner will update the assessment report accordingly and make it available to the relevant parties. In effect, any information or material evidence relevant to a criminal investigation or trial for child sexual abuse is often disclosed as a matter of course. The remaining information contained in counselling records and therapeutic notes has no material relevance but it reflects the heart and soul of a damaged child and should not be subject to disclosure. There is a strongly held view on the part of many practitioners who specialise in assessment and therapy services for children who have been sexually abused that therapy notes should be privileged outright on the basis they are neither material evidence nor information relevant to legal proceedings. When one examines the purpose of therapy for children who have been sexually abused, what the therapy involves and, moreover, the arrangements the services have in place to manage the process, the rationale for affording such privilege is very strong. Therapy as a whole is not concerned with making judgments or assessing the veracity of what is shared in sessions. Rather, it is simply a particular type of human engagement where the exploration of a child's thoughts and feelings at a particular point in time are facilitated. Therapy notes, in turn, are context specific. They derive out of a therapeutic encounter and as such are concerned with documenting feelings, thoughts, hopes, fears and dreams. They are not absolute facts. They are not material evidence.
Ultimately, the aim of therapy is to assist a child in getting back to a life that is not dominated by the sexual abuse he or she experienced and to equip the child to build trusting relationships. In doing so the therapist will address patterns of behaviour or responses which have become unhelpful, burdensome or troubling in the child's living experience. Therapy can also draw attention to healthy responses and coping strategies shown by the child in and out of sessions. This can involve the use of fantasy and therapeutic play scenarios, especially for younger children where the child can try out different roles in order to make sense of the abuse experienced. However helpful the process may be to the child, therapists are becoming increasingly concerned about how notes describing such a scene might be interpreted in a legal arena and taken out of context.
Trust in the therapeutic relationship and the creation of a safe space are paramount to the effectiveness and success of the therapeutic process. It is difficult to envisage how this can be achieved if the privacy and confidentiality of these therapy sessions are not sacrosanct. I argue that the effectiveness and success of the therapeutic process is an important part of the public interest consideration in restoring the child's well-being and ability to function in society. The amendment is an added layer of protection to reflect the unique vulnerability of the child and the nature and type of information which comes through in the therapy process, as distinct from the material facts. Any additional relevant information is added as a matter of course to the assessment report.
I am acutely aware of the need to strike the proper and appropriate balance between the right of the accused to procedural fairness in a child sexual abuse case, the right of a child witness to privacy, as well as the right not to be revictimised or unduly traumatised by the criminal justice system, and the public interest. The amendment is wholly compatible with Irish constitutional law, Ireland's obligations under the European Convention on Human Rights and the best interests of the child in the context of providing in law that the disclosure of sexual assault counselling communications of children will only be granted by a trial court where the evidence sought has substantive probative value, where there is no other evidence which could prove the disputed facts and where the public interest in disclosure outweighs the potential harm to the child.
As I stated, I would prefer to make these notes privileged and sacrosanct, but what I have done in the amendment in strive to strike the balance needed in law. I hope the Minister will look favourably on the amendments.
I second the amendment.
The Cathaoirleach will forgive me for welcoming a group who are here from counties Westmeath and Offaly, including some personal friends-----
-----and from Longford also of course. I am thinking of the Longford-Westmeath constituency perhaps more than anything else. As I say, we know some of the visitors in the Visitors Gallery and hope they are enjoying their tour.
On my party's amendment on disclosure, amendment No. 41, as I interpret it this goes fundamentally to the protection of a complainant. If one can envisage a scenario where somebody has been sexually assaulted and is disoriented and traumatised and goes to the local Garda station to make a complaint, I would like to clarify whether the Minister is aware of the operational procedures in these circumstances. In terms of the person's legal rights, for example, would the gardaí who - it is a given - would be very sympathetic to the individual, advise her that she should seek legal advice or might they, as seems to be suggested, persuade the victim at that early stage in the proceedings prior to a judicial proceedings to waive her rights to disclosure?
I am leaping a little further ahead. Let us say, for example, it was a high profile individual. My initial reaction would have been that, of course, one would seek legal advice and if one were going to complain, one would go with a solicitor to the local Garda station, but there are those who might not. Perhaps, because it might be in the immediate aftermath of this traumatic experience, it might not be a considered judgment after a number of days. Also, perhaps the individual was high profile or known. Then there is the possibility - I am treading carefully because, sadly, it has happened - that the complaint might be leaked to the media and that they would give the name of the individual because the right to non-disclosure might have been waived. I am only positing these scenarios. I am not saying they will happen, but they might.
Clearly, the Minister is careful to ensure that in drafting legislation, particularly this specific aspect, it will ultimately protect the complainant from further trauma. It is in that context that we have tabled this amendment, that there should be at a minimum a legal requirement that when a complainant goes to make a complaint to local gardaí or whatever other process is used to make the complaint, that it lead to judicial proceedings and that the complainant's anonymity be legally protected, if she so wished. As Senators will be aware - again, I am treading carefully - there are those who, despite the trauma, which I, as a man, cannot comprehend or imagine, have allowed their name to go into the public domain in order to ensure the person who raped them will not get away with it and that it might encourage other women to come forward, many of whom, although I do not have the statistics, sadly, do not.
Amendment No. 41 is similar to amendment No. 39. Senator Jillian van Turnhout so eloquently outlined her reasoning for tabling it. This amendment stipulates that a victim's consent to a waiver would only count if he or she had had an opportunity to seek and consider independent legal advice first. Otherwise, it is not consent that is properly informed.
On behalf of my colleague, Senator Denis O'Donovan, for whom I am taking this debate and who is, unfortunately, indisposed at present, I thank Ms Caroline Counihan, the legal policy director of Rape Crisis Network Ireland, for the information she gave us on this amendment. If the Cathaoirleach does not mind, I will refer to what she has stated about it. She states there is no statutory entitlement to legal advice for complainants before a prosecution starts, as Senator Jillian van Turnhout has already alluded to. She states, for example, and most importantly, that at the critical and, for many, traumatic stage when a victim gives his or her formal statement of complaint to An Garda Síochána, it routinely happens that the investigating member of An Garda Síochána will put a form of consent to the disclosure of all personal documents, including medical reports and notes, as well as counselling notes, in front of the complainant for signing. Ms Counihan adds that if the complainant has not taken legal advice at her or his own expense or contacted a rape crisis centre and asked for legal advice pro bono through the centre, or is not accompanied by a support person, she or he is unlikely to provide the consent at this stage which is fully informed as to the consequences of each option. While it is entirely fair and correct to state most gardaí go to great lengths to ensure the complainant understands each set of consequences, it is the view of Ms Counihan that such advice is not and cannot of its nature be entirely independent. Therefore, when down the line the man comes in for the counselling notes, the complainant generally finds that this consent is used as justification for the hand-over of confidential counselling notes, although it was signed in a situation where the attention of the complainant was entirely elsewhere, which is understandable, and where she or he might not have been given to understand that it was possible to ask for time to reflect and seek independent legal advice on whether to sign the consent forms.
I ask the Minister to look favourably on this amendment and amendment No. 39 in the name of my colleague, Senator Jillian van Turnhout, for the reasons I outlined.
These are two very good amendments which I strongly support. The wording of the Fianna Fáil amendment is word for word exactly the same as subsection (17)(b) of Senator Jillian van Turnhout's amendment and I assume that they shared a common source of some kind, but they are reasonable amendments. It seems that the case has been made that in most circumstances this material should not be subject to disclosure. It could be very damaging to children. It should be a matter of privilege. As Senator Jillian van Turnhout so wisely stated, these items of evidence of counselling, etc., deal with the mindset, dreams, wishes and feelings of the victim. They are not objective facts and should not be regarded as such in a court of law. The most important principle is the matter of trust that a child who is a vulnerable person should have in the operation of the law and the fairness and concern of the judicial system with which he or she is involved.
I commend colleagues for tabling these amendments. There has been a broad welcome for section 34. It has been hugely important to see for the first time in statute these very important provisions on the disclosure of third party records. This has been such an important issue for so many complainants and their legal teams and rape crisis centres which have been working with them for some time. I commend the Minister for the provision in section 34.
There is a concern about the issue of non-disclosure and in what context complainants and witnesses waive the right to non-disclosure. That is at the heart of the amendments and an issue worthy of further consideration.
As has been said, section 34 regulates the disclosure of the content of third party counselling or therapy records in sexual offence trials. The disclosure of counselling or therapy records in the context of criminal proceedings, especially in relation to sexual violence, touches on a number of sensitive issues and a "balancing of rights", a phrase I will be using quite a bit in responding to the amendments. Clearly, the right to a fair trial for an accused must be respected. However, so too must the right of the victim not to feel further violated in the criminal justice process.
It has been of huge concern during the years that that has actually happened. It is really important to have clear law on the disclosure of records. I am very pleased that we have been able to include it in the legislation.
Since the Bill was published I have received many submissions proposing various changes. I thank, in particular, Rape Crisis Network Ireland, CARI and the child sexual assault units at Temple Street hospital and Crumlin children's hospital which have made very extensive submissions on this section. They will influence the approach I am taking to the issue. I have also gone back to the Attorney General on the proposed changes. It is an exercise in balancing competing rights and we need to get that right from a constitutional point of view. There is also an important constitutional point.
Unfortunately, I am not in a position to introduce amendments today, but I will do so during the later passage of the Bill. I wish to outline some of the amendments I hope to table at a later point, at which time we will discuss them again. I want to remove the references to the "competence of the complainant or witness to testify" from the section, as I am persuaded by the submissions that counselling records are not relevant to competence.
As we are not discussing amendments Nos. 34 and 35, I will move on to look at a number of other changes I am proposing. For the purposes of clarity and on foot of legal advice, I propose to rename the records-----
On a matter of information, why are we not discussing amendments Nos. 34 and 35?
They were not moved.
They were not moved.
I beg the Minister's pardon.
It is my intention, for the purposes of clarity and on foot of legal advice received, to rename the records falling within the scope of this section as "counselling records" rather than "relevant records" but otherwise to retain the existing definition of the records. The point of the definition is to ensure any "counselling record" of which the prosecutor is aware and which the accused seeks to have disclosed is protected by the statutory disclosure regime.
I will be proposing the deletion of subsection (4). This will be one of a number of amendments with the aim of clarifying and simplifying the scheme in general and, in particular, the test in subsections (9) and (10) under which a counselling record may be disclosed.
As currently drafted, the test is twofold within subsections (9) and (10). The list of factors that must be considered make it clear that the pertinent issues are not merely relevance but rather the probative value of the record and the extent to which the record is necessary for the accused to defend himself or herself. This is a much higher threshold than relevance and is only confused by the inclusion of relevance as a determinative part of the test. These factors must be weighed against the complainant's right to privacy and the public interest in encouraging victims to come forward to seek counselling and report sexual offences. I intend to add to these factors the risk of harm to the complainant, as was proposed in amendments Nos. 38 and 39.
Under this simplified procedure, the court will be required to consider the factors set out in subsection (9) and on that basis to disclose the records only where it is in the interests of justice to do so. As an additional safeguard, to ensure the constitutionality of the scheme and protect convictions from challenge, a record must be disclosed if failure to do would result in a real risk of an unfair trial. I am hopeful a stronger, clearer procedure, along the lines I have outlined, will better protect the rights of victims, while respecting the fundamental right of an accused person to defend himself or herself. It is clear that considerable thought has gone into the submissions I have received and I will take a number of them on board.
Amendment No. 39, about which Senator Jillian van Turnhout in particular spoke, proposes a separate disclosure regime to apply to children. I appreciate the aim of the Senator's amendment which is to provide an enhanced level of protection for child victims of sexual offences when it comes to the disclosure of their personal records. However, I am not convinced that the amendment is necessary.
The amendment would add three additional criteria to the factors in subsection (9) which the court must take into account in determining whether to disclose a record. When weighing the relevance of various factors, I do not think it is necessary to differentiate between "probative value" and "substantial probative value," as weighing the extent of the probative value is inherent in the exercise.
The second additional factor relates to the availability of other evidence rendering the record unnecessary, which, as I see it, is already covered by subsection (9)(a), which refers to "the extent to which the record is necessary for the accused to defend the charges against him or her".
The third additional factor proposed by the Senator relates to the risk of harm to the complainant. As I have said, I intend to include this factor for all complainants. For these reasons, I do not believe the proposed amendment is necessary to meet the objective she described. The existing provision, when amended, will establish this level of protection for all complainants, which obviously includes children.
Amendments Nos. 40 and 41 refer to legal advice. I have referred this issue to advisory counsel and will consider it further when I get that advice. A complainant has the right to have his or her own independent agency respected and recognised. The waiver provision in subsection (17) is supportive of a victim who has no difficulty with the disclosure of his or her records. There will obviously be people in that situation. This provision prevents a victim from having to attend an additional hearing on the disclosure of records which he or she is willing to disclose.
A requirement to offer free legal advice to a complainant before he or she can consent to disclose could be seen as an unnecessary intervention in the right of a person to disclose a record relating to them if they wish to do so. If a complainant has no objection to certain of his or her records being disclosed, for expediency or any other reason, the complainant should have the right to do so. They are some caveats I enter in response to the Senator's point about obtaining legal advice before the disclosure of records.
I am not convinced that including a requirement to offer legal advice before these rights could be waived would materially alter a person's right to consent to disclose the record. A victim could still disclose the record himself or herself in the absence of legal advice, or agree at any court hearing to the disclosure. I have referred this issue to advisory counsel.
It is only proposed as an added protection.
I understand that.
It would be an optional added protection.
I have referred it for further advice. I will return to the issue.
On a point of order, will the Cathaoirleach reassure me that there is a quorum in the House for the debate on this most important Bill?
I very much welcome the Minister's response and her commitment to make these amendments. I was seeking to provide an additional layer of protection, as she advised, for children. I have heard all too often, particularly from parents of affected children, that because of the potential for counselling notes to be disclosed, they have not sought to bring charges for sexual offences. In balancing the rights, the Minister also needs to balance the public interest and the right to justice in order that people will bring forward cases. If I, as a parent, put my child through counselling and felt all these notes could potentially be forwarded to the person who allegedly committed the crime, that would be horrendous.
I totally agree.
We must ensure our law copperfastens this. I ask the Minister to take this on board in her further deliberations. I have heard all too often about that fear. I tried to balance rights in my amendments. I have heard from children who have been in counselling where they talk about their hopes, dreams and fears. This is not factual evidence. Children will say things they are repeating because it is part of the therapeutic process and that process must be allowed to happen. An assessment report is carried out and that needs to be distinguished from the therapeutic process. If anything comes out of that process that contradicts the assessment report, it must be ensured the report is immediately updated and that the relevant individual is advised of that information because everyone has a right to his or her good name. I fully appreciate this, but a protection has to be provided to prevent just anybody looking at the counselling notes, particularly a person who is charged with a crime. I welcome the Minister's commitment to do this and will track the Bill as it goes through the Dáil.
Is amendment No. 41 being pressed?
No. I thank the Minister for her reply. I take on board what she said and ask her to take on board what we said. I hope that when she revisits this issue, she will deal with the entitlement to legal advice.
Amendments Nos. 42 and 43 are related and will be discussed together.
Amendment No. 42 clarifies the way in which the order takes effect and is notified to the person against whom it is made. Amendment No. 43 provides for the hearing of an application for a harassment order to take place in private.
As there is only Teller on the Níl side, the division cannot proceed. Therefore, I declare the amendment carried.
On a point of order, in that case, may I ask for a walk-through vote?
There is no vote.
As there is only one Teller on the Níl side, the division cannot proceed. Therefore, I declare the amendment carried.
I thank Senators for their contributions during the passage of the Bill. On the question raised by Senator Jillian van Turnhout on Committee Stage about section 15 and whether civil partners and cohabitants are included in the definition of "person in authority", civil partners and cohabitants fall under subparagraph (d) of the definition which provides for partners of a parent of a child who live in an enduring family relationship to fall under the definition of "person in authority".
This is the most comprehensive sexual offences legislation to be brought forward in almost a decade. It strengthens existing law to combat child pornography, the sexual grooming of children, incest, exposure and other offensive conduct of a sexual nature. It also recognises the particular trauma experienced by victims of sexual crimes. As I said earlier, I believe the provisions relating to the disclosure of counselling records will benefit from further clarification. This has been reinforced by a number of submissions which I have received. It is extremely important that we get this right because we want to ensure people will go for counselling and also that they can take cases in court without fear. There must be certainty in this area. I again thank those who made submissions on the issue.
The necessity for greater focus on the needs and rights of victims is strengthened in the Bill. As a result of the putting in place of the new EU victims directive, work has commenced on legislation to ensure we meet the objectives of the directive. Many of our criminal agencies are already implementing the victims directive effectively through their services, by way of new procedures and practices. The second national strategy on domestic, sexual and gender based violence which was launched yesterday is the result of extensive consultation with State agencies and the voluntary sector. One of the three main goals of the strategy is the provision of services for victims and holding perpetrators to account. What is clear from all of this and the discussions we have had is the commitment of all of us to recognising the rights of victims and the need to protect to the greatest extent possible these rights, be it through recognition in law or other services.
Obviously not everybody agrees with every section of the Bill. The most controversial provisions are those concerning the criminalisation of the purchase of sexual services. Having listened to both sides of the debate, I am convinced that the exploitation associated with prostitution, in particular, through the trafficking and sexual exploitation of persons, justifies the introduction of these provisions.
I again thank Senators and members of the NGO community, many of whom are present, for their involvement in the development of this legislation. I also thank the members of the various committees, particularly the justice committee, for their work on the Bill.
I welcome the passage of the Bill by the Seanad. As stated by the Minister, it concerns many aspects, on which several of us have been working for many years, including the sexual exploitation of children, the purchase of sexual services, incest and the disclosure of third parties, which are some of the key aspects in which I have been involved. While I have not been successful in having all of my amendments accepted, I hope they will be included in some form or other in the legislation as it progresses through the Dáil or in future legislation.
I thank the Minister and her officials for their engagement on the Bill and facilitating me in providing clarification on certain issues. I also thank the Minister for providing the clarification I sought on Committee Stage on section 15. I also thank the civil society organisations which are too numerous to mention individually for their work on the Bill. On each of its aspects I have had extensive engagement with civil society organisations.
I pay tribute to them for representing the views, experiences and practice they are experiencing and helping us, as legislators, to shape the law to address the concerns and issues that arise and to make the legislation what we all hope it will be. I say "Well done" to the Minister on passing the Criminal Law (Sexual Offences) Bill.
I add my voice to that of Senator Jillian van Turnhout and others to say how delighted I am to see the Bill pass Report Stage in the Seanad. I am also delighted that the Minister introduced it as a Seanad Bill. I thank her and commend her for her great work on the Bill and bringing forward such a comprehensive and ground-breaking reform. In particular, I thank her hard-working officials who have been so patient with us during the long process of the Bill. They helped us so much with numerous queries. I thank them all very much.
The Bill is ground-breaking in many ways. It provides for comprehensive reform of the law on the sexual exploitation of children, incest and prostitution, and also introduces some very important evidential changes which will provide great support for victims and complainants, particularly for child witnesses in sex offence trials. Many of the measures contained in section 31 are going to be really significant and important in practice, especially for child witnesses, in addition to the provisions on disclosure that we debated so much also.
In terms of the change to prostitution law in section 20, it has had a long journey from when the Independent Senators tabled the original motion in this House in 2012, through our work on the justice committee and our report in 2013, in addition to all the public debate on it. I commend the Minister for her introduction of the Bill. It will make a real difference in terms of the law on prostitution to see for the first time the decriminalisation of sellers and the criminalisation of buyers of sex. I welcome the considerable work of civil society groups on that law reform, in particular - groups such as Ruhama, the Immigrant Council of Ireland and the Turn off the Red Light campaign. I also commend the many other groups who worked on that reform and the important reforms for victims and complainants, particularly the Dublin Rape Crisis Centre, Rape Crisis Network Ireland and various groups of counsellors who all helped us so much and gave their input on the Bill.
All of us who support the Bill will very much hope it will pass through the Dáil in the limited time available to the Government. I know that the Minister will do all she can and we will do anything we can to help secure the Bill's passage because the reforms for which it provides are so important. As the Minister said, the Bill is ground-breaking, comprehensive and of such significance that it is vital that we see it passed in the next week or so.
I thank the Minister for her courtesy and goodwill through what was sometimes a tendentious and argumentative passage of the Bill. I do not agree with Senator Ivana Bacik. I sincerely hope the Bill will lapse in the Dáil and that the urgencies of the general election will ensure it fails to pass Dáil Éireann. I hope there will be at least some few voices there that will oppose it. I note that the Minister's quotation of the Swedish report was a series of assertions unsupported by scientific fact, but we will just have to continue our disagreements.
I did say I was a lone voice, but I am not the only person here who thinks the way I do. There are Members on this and the other side of the House - I know this because I was told during some of the votes - who are seriously concerned about this situation and believe it will drive matters underground, cause great difficulties and lead to the increased involvement of organised crime. That worries me, but this is a democracy and the Bill has passed. I compliment the Minister and her advisers on the very courteous way in which they dealt with the Bill.
On behalf of my colleague, Senator Denis O'Donovan, my party's spokesperson on justice, and on behalf of the Fianna Fáil Party, I very much welcome the passage of this very important Bill through the House. I commend the Minister, her officials and all of the draftspersons who were involved in putting the Bill together. I thank all of the organisations that advised Members on both sides of the House. In particular, I thank Rape Crisis Network Ireland, including Ms Counihan and her colleagues, for their input and the information they gave to my party in that regard. There have been differing views and opinions but, bar one or two, we are all in agreement that this is a very important Bill. I am glad that it has been passed with almost unanimous support in this House and hope it will have a speedy passage through the Dáil, whenever that might be.
Like my colleagues, I thank the Minister, her officials who are present and those who are not here for their work on the Bill. I thank all of the groups that have engaged in this process. In particular, I pay tribute to the Oireachtas Joint Committee on Justice, Defence and Equality which did a significant amount of work on the Bill. It received submissions, held oral hearings, travelled to Sweden to look at the model in place there and made significant recommendations to the Minister whom I commend for being open-minded in her deliberations and on the development of the legislation. I also pay tribute to the Members on the other side of the House - those in Fianna Fáil, the Independents and Sinn Féin - for their significant engagement in this process. This legislation will protect women and criminalise the people who should be criminalised. It is a very significant Bill with provisions that have been tried and tested in other jurisdictions. I also thank the Leader of the House, Senator Maurice Cummins, for his support and co-operation and that of his office also.
I thank the Minister and her officials for this Bill which is very comprehensive, well researched and well thought-out. It is clear that the consultative process has been wide-ranging and that the Minister has listened to all sides of the argument. The lone voice against the Bill is potentially out of step with every other Member who has voiced support for it. As a victim of sexual abuse, it is hugely important legislation that will protect not only children but also women. I express my support for the Bill in its entirety and hope it will be passed quickly before the Government falls.
I briefly thank the Minister and her officials for bringing this very comprehensive Bill to the House. We cannot say it has not been challenged and debated sufficiently, as it certainly has been discussed for quite an amount of time. I thank the Minister for her forbearance and courtesy at all times during the debate. I hope the legislation will have a speedy passage through the other House before the general election.
When is it proposed to sit again?
At 2.30 p.m. on Tuesday next.